Chief Justice Warren E. Burger: In number 5040, Mayer against City of Chicago.

Mr. Field.

Mr. Henry F. Field: Mr. Chief Justice and may it please the Court.

This case raises once again the issue first raised and decided by this Court 15 years ago in Griffin versus Illinois of whether the Fourteenth Amendment requires that a State which provides appeals of right and reporters who transcribe trials provide a poor person who is unable to pay for that transcript and who needs that transcript to demonstrate crucial trial errors so that he may have an adequate and effective review and may adequately exercise his right of appeal.

This case today arises under Illinois Supreme Court rule 607 which at the time of trial and until very recently provided that only defendants in felony cases had, indigent defendants, had a right to apply for free transcript from the State of Illinois.

As of July 1st of this year that rule has been amended so that it now provides that any defendant who at the time of trial faced a penalty greater than six months in jail could apply to Illinois for a transcript.

Justice William J. Brennan: That rule applied in this case?

Mr. Henry F. Field: Pardon me?

Justice William J. Brennan: That new rule has applied to this case?

Mr. Henry F. Field: No.

Your Honor.

It did not?

Unknown Speaker: But (Inaudible) they word it?

Mr. Henry F. Field: No, I do not believe it affects the case in anyway.

Justice Byron R. White: What was the possible penalty?

Mr. Henry F. Field: Here the possible penalty at the time of trial was $1000.00 fine and no jail term at least initially.

Chief Justice Warren E. Burger: I am not sure I follow about that means initially.

Mr. Henry F. Field: Well, Illinois does-

Chief Justice Warren E. Burger: An alternative if he did not pay the fine?

Mr. Henry F. Field: Yes.

Chief Justice Warren E. Burger: And how much?

Mr. Henry F. Field: Illinois provides that a defendant has to pay off, work off the fine of $5.00 a day and that is the contingency in a case which leaves a possible jail sanction, but after this Court's decision in Tate versus Short of last year, this question is perhaps removed from the case although still, there are still some uncertainty I believe in the construction of that case.

Chief Justice Warren E. Burger: Or would it be removed from case automatically or with just the $5.00 a day, the under question?

Mr. Henry F. Field: Well, the effect of Tate versus Short, were it applied to this case, would be as I understand the case that the defendant here could not be put in jail at the rate of $5.00 a day, if he did not pay the fine, was not able to pay the fine that he was sentenced to.

Chief Justice Warren E. Burger: That your new rule does not reach anything measured by the amount of the fine?

Mr. Henry F. Field: No.

Chief Justice Warren E. Burger: Only the fine?

Mr. Henry F. Field: Only if the defendants at the time of trial faced a penalty of greater than six months in jail and does not include the contingency of six months worked off through fine.

Unknown Speaker: You are suggesting maybe this case is a true so called petty offense rather than one that might have avoided 6 months jail?

Mr. Henry F. Field: I do not believe that even at the $5.00 rate this defendant would be in jail for more that six months.

So that the point would not be raised, Yes.

Chief Justice Warren E. Burger: So that the $5 rate could it be 200 days, would it not, if my arithmetic is correct?

Mr. Henry F. Field: He was sentenced at trial for $500.00 fine.

He faced a thousand and sentenced to 500 and I believe that he could not be put be in jail then in Illinois in rate of more than a 100 days.

I would not belabor the Court with any kind of discussion of, lengthy discussion of the rule law in this case as you all are familiar with Griffin that established the principle that the destitute defendant must be afforded as adequate appellate review as persons who can afford transcripts.

Just last year in Williams versus Oklahoma City this Court decided a drunk driving case where the defendant faced 90 days in jail and in unanimous per curiam opinion had no trouble applying Griffin to the facts.

Rule 607 of the Illinois Supreme Court --

Justice Harry A. Blackmun: Mr. Field where is Mr. --Doctor Mayer, where is he now?

Mr. Henry F. Field: He is now in California.

I cannot fully posses the circumstances but he has moved from New York where he originally was.

Justice Harry A. Blackmun: I am just curious.

Is he practicing medicine now?

Mr. Henry F. Field: I prefer not to make representations about his apparent status because I am really not to fully informed.

The record has nothing in it concerning his present circumstances and I have not made myself to aware of those.

He has that -- I do have some information concerning him and that information to my knowledge has not changed his indigency status.

He still cannot pay for the transcript.

He is not a leaving at anything about necessaries, but as I want emphasis I am not fully informed on that fact, on that point.

Justice Byron R. White: But I suppose there are active file and no certifications here?

Mr. Henry F. Field: Yes.

After the trial the petitioner filed an affidavit and there was full hearing on this question of his indigency where the City was represented and attacked it and the acting Chief Judge of the Circuit Court of Cook County found that he was indeed indigent and unable to pay for the $300.00 transcript.

Justice Byron R. White: I suppose that leads you to a trial to be here, is it possible?

Mr. Henry F. Field: Yes.

The Rule 607 of Illinois Supreme Court wholly denies a transcript to this appellant who faced a $1000.00 fine and regardless of his need for it and he needs that transcript as I will demonstrate in order to raise the really central point of this trial and Rule 607 also wholly denies an opportunity to the all indigent persons to show and demonstrate to Illinois that they need a transcript in order to raise points at evidence and the kind and possibly unconstitutional conduct of their trials and it completely insulates trials of indigents from the review in cases involving less than six months in jail.

It's appellant’s contention that this blanket prohibition of all indigent now under six months and under appeals violates the Fourteenth Amendment in several respects.

First Illinois has chosen to draw an invidious line between rich and poor in violation of this Court's clear mandate in Griffin and Williams and many cases elaborating those principles.

Secondly, it hides and insulates from any appellate correction unconstitutional errors, in this case the denial of fair trial.

The facts of the case necessarily skimpy, can be briefly stated.

Chief Justice Warren E. Burger: Mr. Field before you go on, I am not sure how important it is, but I am a little surprised that you seem the think that the present status of the petitioner, his financial status, it is not relevant, that it must stand on his status at the time the case arose.

What if hypothetically if he had a million dollars between now and then and that is demonstrable and was demonstrated.

Mr. Henry F. Field: Well, That is of-course —-

Chief Justice Warren E. Burger: Well, it does not have something to do whether this Court should be devoting its time to the case on the grounds of indigency?

Mr. Henry F. Field: That could be true Your Honor and that's not of course a situation.

Chief Justice Warren E. Burger: Oh!

No it is not.

Would it not be rather remarkable to think of a young man, a relatively young man who has degree of doctor medicine today in the United States being indigent?

Mr. Henry F. Field: Well, my understanding that he had tremendous debts and that I just feel very strongly that this case had gone through the full hearing of Indigency and that this situation basically has not changed and I know nothing that would change that and --

Chief Justice Warren E. Burger: I do not mean to suggest that we would hold you to knowing at the present instance his financial situation.

I do not mean that at all.

Mr. Henry F. Field: If the Court would leave.

Chief Justice Warren E. Burger: Do I understand that you either be suggesting that if that situation is irrelevant to this case?

Mr. Henry F. Field: Well, were he a millionaire, I could conceive how it could be irrelevant because of the method that Illinois has chosen to completely deny transcripts to indigents in nine to six months cases.

Chief Justice Warren E. Burger: Well, would we be concerned about what they are doing in other cases or --

Mr. Henry F. Field: Yes, I think it, well --

Chief Justice Warren E. Burger: -- what they are doing in this case?

Mr. Henry F. Field: Well, I think this case of-course is important and his ability to pay now might indeed change the Court's whole posture on the situation.

However, this Court has a record before it which I believe is complete and Illinois by hesitating can frustrate this Court's enforcement of Fourteenth Amendment by -- as it has in this case, forcing defendants to appeal and because time is always money, raise in any indigent case a question as to it his ability to pay for a transcript.

Justice William J. Brennan: Well, I understood that the last affidavit is the one that is in pages 26 that apparently was sworn to on the third day of February 1970.

At that time he was not -- I do not understand, he was a physician, but a medical student.

Mr. Henry F. Field: That is true.

Justice William J. Brennan: Is he now a physician or?

Mr. Henry F. Field: Frankly, Your Honor I am not certain what a physician is since he has to my understanding graduated.

Justice William J. Brennan: Had graduated from the Medical School?

And you think it might well I suppose he is having an internship.

Mr. Henry F. Field: This I believe it was a summer and he is been working in a Hospital for several months.

Unknown Speaker: Internship as an intern?

Mr. Henry F. Field: Yes.

I suppose that is correct.

Unknown Speaker: (Inaudible)

Mr. Henry F. Field: I do not know what he is getting.

I have no knowledge of it.

Unknown Speaker: (Inaudible)

Mr. Henry F. Field: No.

He is only been working very, very briefly.

Basically what happened was that this defendant was a participant as a Medical apprentice while he was in the Medical School, first aid assistance at the scene of a demonstration in Chicago, march and rally, which was sponsored by STS and various other anti war at that time groups and he came upon a injured victim and interacted with the police under circumstances which were the subject of a two-day jury trial.

Justice Potter Stewart: He interacted with the police, for that's a (Inaudible) what?

What did he -- what happened?

Mr. Henry F. Field: Well, that of course is the transcript which is not present in the case and what happened --

Justice Potter Stewart: What was he charged with?

Mr. Henry F. Field: He is charged with two City Chicago Municipal offenses.

Justice Potter Stewart: Like the (Voice Overlap)

Mr. Henry F. Field: Disorderly conduct and interfering with the police and he was sentenced to $500 and I represented this defendant at trial.

After the trial --

Justice Potter Stewart: The $500 fine and no imprisonment?

Mr. Henry F. Field: No jail, no jail was possible except as we discussed extensively.

Justice Potter Stewart: Right.

Mr. Henry F. Field: After the trial he filed a post trial motion which raised several substantial contentions, attacking the legitimacy of the verdict and a judgment of a case.

His basic point was that he has convicted on insufficient evidence compounded of grossly prejudicial prosecutorial misconduct, he was denied in the fair trial and the cumulative effect was to override, wholly override the evidence in the case.

As stated in affidavit of counsel at the -- in the post trial motion and before the -- and the motion in Illinois Supreme Court, it was our feeling that the defendant was convicted not for what he did, but for sins of STS and for unreal -- wholly unrelated, but contemporaneous injury to one Richard Elroy (ph) who vaulted, who was them an obscure city lawyer in a prosecutor's office and vaulted in the front page of Chicago papers all during the preliminary portion this trial and the time between his arrest and trial and proceeded from the front pages of Chicago papers to elective officers, now Sheriff of Cook County.

After this motion was denied and we learned the cost of a transcript is well beyond his means, we moved in the Circuit Court of Cook County for three things, appointment of counsel, production of a transcript and a waiver filing fees.

After lengthy hearing this, the Court found that he was indigent and unable to pay, but refused to grant him access to the transcript on ground that Rule 607 applies only to felony cases.

The order is -- order that the motion of a defendant for relief proceed as poor person.

He and it's hereby denied on the grounds that defendant was found guilty of ordinance violations and that Rule 607 of the Supreme Court applies to felony cases.

We renewed the motion in the Illinois Supreme Court and urged the unconstitutionality, the approach taken by Illinois Rule 607.

The motion, after due consideration, for counsel and transcript was denied and filing fees were waived.

Unknown Speaker: Mr. Field, the rule that provide any alternative methods of recording the proceedings?

Mr. Henry F. Field: Yes, that is provided in other Sections of the Illinois Supreme Court rules and there are two basic methods for proceeding.

The first method is to get an agreed statement and the second method is to get a -- if you cannot agree to get a settled statement, agree with the prosecution and I suppose the Court.

Unknown Speaker: Well did was as what – well these are methods pursued by --?

Mr. Henry F. Field: Neither method was pursued in this case and the reason goes to the heart of the contention here.

It is the position of the defendant and appellant here that very clearly on the face of his contentions, neither alternatives are adequate, neither alternatives adequate.

The two contentions; one of insufficiency in the evidence and one of grossly prejudicial misconduct, both require the kind of detailed survey of the facts of the case.

The words used, the question supposed, the answers and responses which only a transcript could provide and which no one connected to the case, having total recall, could possibly reconstruct.

Chief Justice Warren E. Burger: How long did the case take to trial?

Mr. Henry F. Field: My best recollection is it was two days, but there was possibly some spill over to a third day for --

Chief Justice Warren E. Burger: Would you suggest a hypothesis as to how appeals were thoroughly conducted years ago when there was no recorder and there was no transcript that the bill of exceptions or by whatever name it was called the claims of error were reproduced for the appellate court by counsel relying on there recollection with or without total recall.

Mr. Henry F. Field: There would be no way to adequately present an appeal on these contentions in that circumstance.

Chief Justice Warren E. Burger: I mean for 115 years, we were in this country processing all appeals inadequately, including appeals for a rich man?

Mr. Henry F. Field: Well, if there were scribes at trial or to people helping Attorneys who could take down the detailed testimony that could have not been true, but in this case the problem was that he was poor and he had only his counsel and—

Chief Justice Warren E. Burger: Are you representing that in a two-day trial a trained lawyer cannot reproduce, two trained lawyers cannot reproduce the substance and the essence of the testimony that's given in the trial.

Is that your suggestion?

Mr. Henry F. Field: That maybe possible I think in most cases, but that not certainly not the case here because the nature --

Unknown Speaker: Did you do it, did you take notes, careful notes?

Mr. Henry F. Field: No, I did not take care for notes.

I took some notes and I -- but I was conducting the cross examination and I knew that the transcript was either reporter was present and that --

Chief Justice Warren E. Burger: Did you have an associate with you?

Mr. Henry F. Field: No.

There was no one from the case and I think that the nature of the contention, the key to why a transcript is required to this case because the contention on introduction of the evidence was that the police, some certain police testimony which the purport of which was to show this man, the defendant to be violent man, was inherently incredible and was demonstrated to be such by other testimony at the trial and by the cross examination by myself, lengthy cross examination of the police witnesses.

Chief Justice Warren E. Burger: Are you -- do you represent that the day after or the week after you could not sit down yourself to make a synopsis of the testimony of each witness of that trial?

Mr. Henry F. Field: That is absolutely true as to this two contentions, Your Honor.

Chief Justice Warren E. Burger: That you could not do it?

Mr. Henry F. Field: I could do, I could make synopsis of much of the testimony.

There is no doubt that I can recall a great deal that went on, but there is no way that I can recall the kind detailed questioning and the words used that precise words used that go to show the nature of the prejudicial attack of the prosecutor as intensive systematic effort to hang this defendant, not for the facts of what happened with his interaction with the police, but for -- on wholly related matters and sins of others and injury to Mr. Richard Elroy which was the really prime focus of the persecution.

I believe that I can show that with a transcript.

I could that the first witness in the case is put on solely for the reason of interjecting into this trial, the name, well known to everyone of Richard Elroy.

Justice Potter Stewart: Who is Richard Elroy?

Mr. Henry F. Field: Richard Elroy is now the Sheriff of Cook County.

Justice Potter Stewart: Oh!

Yes.

Mr. Henry F. Field: At the time of incident here, out of which this case arises, he was an obscure city lawyer in the Corporation Counsel’s office, a prosecutor for the City of Chicago.

That he was -- this appears from the affidavit, these facts appear on affidavit of counsel in brief at 12.

He vaulted from obscurity into the front pages and into elective office on the basis of his injury which occurred during this same anti war demonstration.

Two rules of Illinois law also combine to make overwhelming the impossibility of this defendant reconstructing the nature, the words used, inadequate, a minimally adequate factual predicate for presenting these two contentions.

First of all under Illinois law the defendant, if there is any disagreement as to the facts, must prove desperation of the facts.

At a hearing on effect under rule, Illinois Supreme Court Rule 323, I believe which is a settled statement rule and in this situation there is no way that I could or anyone could prove the detailed and intensive prejudicial conduct of the prosecutor.

The words used, how could I prove, how could anyone prove something they cannot recall?

The second rule of law creating a hurdle to an adequate review, inadequate alternative is that the appellate Courts of Illinois presumed the facts against the defendant, if inadequate record is not provided for at least to support the contentions on appeal and there is no way that this defendant can create minimally adequate factual predicate for these two contentions.

He could create to settled and agreed statement on many other facts in the case but there is now way he can proceed.

Justice William J. Brennan: You are not arguing that if it were possible to pursue one of these alternatives facts if it were, you say it did not, if it were, you do not argue that nevertheless constitutionally he is entitled to proper transcript, do you?

Mr. Henry F. Field: No I do not argue that Your Honor in this case.

Justice William J. Brennan: Well, what are we to do with the facts as I understand it, you did not pursue, made no attempt to pursue one of the alternative methods?

Mr. Henry F. Field: That point is made by the state attorney in capacity as amicus and I think the answer to that there has to be a clear recognition that based on the affidavit and others facts of record --

Justice William J. Brennan: That the affidavit to make out a case?

Mr. Henry F. Field: They may got a very clear case.

Justice William J. Brennan: (Voice Overlap) from attempting either the alternative methods?

Mr. Henry F. Field: That they show, they demonstrate.

Justice William J. Brennan: Is that your position?

Mr. Henry F. Field: That is my position.

I would change the words slightly.

They demonstrate that is impossible for -- that this was impossible for this defendant to proceed without being caught in that fine of either submitting a settled or agreed statement which was he knew to be wholly inadequate which could not start to create the minimum factual predicate for these two points and if it is agreed upon, if the prosecutor and if I where the prosecutor I would think it very smart to agree to the statement, knowing full well that's inadequate.

What if he creates -- leaves --

Chief Justice Warren E. Burger: How can you say inadequate, if you never tried to do it.

Mr. Henry F. Field: Well, I have to -- the counsel and the defendant have to create the factual statement and there is no way without total recall that I can demonstrate and create a factual record on these two points.

They require close attention to the words used and the questions posed on cross examination and direct examination --

Justice William J. Brennan: What you are trying to say in the Illinois Court why it was you had not pursued the alternative method?

Mr. Henry F. Field: Pardon, Mr. Justice Brennan?

Justice William J. Brennan: You requested in the Supreme Court?

Mr. Henry F. Field: No.

Justice William J. Brennan: Where did you go, besides the Supreme Court, only to (Inaudible)?

Mr. Henry F. Field: Well, we had the hearing and the denial in the Circuit Court and then in the Supreme Court.

Justice William J. Brennan: Well, did you argue in the Circuit Court you had to have a transcript because the alternative method could be inadequate?

Mr. Henry F. Field: I do not have a transcript and I frankly have forgotten what I argued, but I was totally foreclosed from seeking of transcript because of the Judge's legal ruling that I could not regardless of my need for it and the nature of contentions that were raised, get one under Rule 607.

Justice William J. Brennan: Because the rule did not apply for this?

Mr. Henry F. Field: Because the rule applied only to felony cases.

Justice William J. Brennan: Did you argue this all in the Supreme Court?

Mr. Henry F. Field: No.

This was submitted on papers.

Justice William J. Brennan: And what you submitted, did it make any effort to say why you had to have the transcript (Voice Overlap)

Mr. Henry F. Field: Yes, in the Supreme Court, this was -- in Illinois Supreme Court this was fully briefed, this point and demonstrated why.

Justice William J. Brennan: The matter of alternative was fully briefed?

Mr. Henry F. Field: Oh!

Yes.

This was and in fact the -- except from the affidavit of counsel appears in the brief, as to why it is impossible.

Chief Justice Warren E. Burger: Would you say that your presentation to the Supreme Court of Illinois was substantially the presentation which you had made to us here?

Mr. Henry F. Field: I believe so Your Honor, that the course of trial as to the prejudicial conduct of prosecution was denied in fair trial.

The course of trial was, has to be examined.

Illinois requires that in order to judge the impact of a prejudicial conduct or large, you must survey the whole record.

There is now way that I could or anyone could reconstruct the record, although they could as you point out reconstruct many things in the record.

There is no way that he can reconstruct this point and the point of insufficiency of evidence inherent from credibility of certain police testimony which would permit him to be acquitted on appeal.

Would you take it down to any kind of a proceeding, including in the traffic offense?

Mr. Henry F. Field: I think that Williams versus Oklahoma City indicates that wherever an appeal is granted to all defendants that the appeal may not be denied in effect poor defendants because of inability to buy a transcript.

Now, of course your hypothetical doesn't, isn't this case.

Justice Harry A. Blackmun: No, but I am asking you because this is what we have to struggle with?

Mr. Henry F. Field: Yes, I realize that.

Justice Harry A. Blackmun: I am asking you where you draw the line, if you draw any line?

Mr. Henry F. Field: Yes, I think that you have to examine the real life impact on the defendant in a particular case and at some point the question your -- the point your question raises is that at some point certain offenses are so trivial and unimportant that even the Fourteenth Amendment should not be applied to require a transcript and that I would not be able say hypothetically without an examination of a real case and I just want sit on that case and listen to the --

Justice Harry A. Blackmun: So you draw between offenses for which imprisonment is possible and those for which it did not, I take it you would not draw that?

Mr. Henry F. Field: No, I definitely would not Your Honor.

I think that this case demonstrates the crudity and injustice of that rule, that is --

Justice Harry A. Blackmun: Would you draw out between the monitory figures, above $50 or below $50?

Mr. Henry F. Field: I think that I would look at the realities of the detriment.

That is if it is a fishing license case, take a hypothetical, it might well be that fishing license -- fishing without a license in a certain area of the world is the next heinous, most heinous sin to murder and in that situation I would think that a transcript would be required although a small fine perhaps was involved.

I would look at the particular impact on a particular defendant in cases that arise.

Justice Thurgood Marshall: Mr. Field, is it true that in traffic court you do not have scenario, do have one in --

Mr. Henry F. Field: Yes.

Justice Thurgood Marshall: -- in Chicago?

Mr. Henry F. Field: Yes.

Justice Thurgood Marshall: Did you have the scenarios in the traffic court?

Mr. Henry F. Field: Yes.

The appendix to the reply brief does have a brief synopsis of what I believe to be the situation in regard to reporting of trial generally.

Justice Thurgood Marshall: You mean, not throughout the country, that's my problem?

Mr. Henry F. Field: Yes, no throughout country, at least in the states we surveyed.

It is my understanding that in many jurisdictions there are no -- there is no stenographicaly transcribed --

Justice Thurgood Marshall: That is what I mean.

Mr. Henry F. Field: -- at trial, but in those jurisdictions you have de novo review the Circuit Court and the Court of general jurisdiction where you can be retried and universally in those cases, there is stenographic --

Justice Thurgood Marshall: As I understand, your opposition is that if you do not have a transcript, but you do have de novo, that is okay?

Mr. Henry F. Field: Well, if you had a trial de novo --

Justice Thurgood Marshall: You get a transcript.

Mr. Henry F. Field: You get a transcript and I do not think that there would be a problem.

Justice Thurgood Marshall: Well, that's what I understand you --

Mr. Henry F. Field: The important thing in examining the impact on this defendant here is an alternative if that he needs to wipe his slate clean and as the briefs examined his future and I believe that is real mistake.

Chief Justice Warren E. Burger: Thank you Mr. Field.

Mr. Henry F. Field: Thank you.

Chief Justice Warren E. Burger: Mr. Curry.

Argument of Richard L. Curry

Mr. Richard L. Curry: Mr. Chief Justice and may it please the Court.

The issues as the City of Chicago sees them in this case are two.

First, should rule of Griffin versus Illinois and Williams versus Oklahoma City be extended to afford free transcripts to indigent for appealing cases involving convictions of what are generally recognized as merely of petty offenses and secondly, does the classification between serious and petty violate the Fourteenth Amendment in a fashion which this Court has considered in the past in another cases to be invidious.

We believe that both these questions ought to be answer in the negative.

This Court in Boddie versus Connecticut has recently noted that Griffin rule has had a sturdy growth and I submit that the growth was noticed greatly by the fact that each subsequent application of the rule in Griffin has been based upon a fact situation which found; one, personal liberty of the petitioner in jeopardy and or upon two; the invidious exclusionary consequences of the particular appellate practice as it was applied to an indigent.

Neither of these threshold conditions exists in this case.

Appellant here is not faced with the prospect of incarceration because he was charged with an ordinance violation for which the only sanction was a fine.

And secondly the appellant himself has cavalierly ignored alternate available avenues to perfect his appeal.

Mayer's Illinois Supreme Court appeal of the lower Court jury conviction has been docketed and is awaiting to disposition of this question in this Court.

He is not therefore in the posture of Williams versus Oklahoma City and your decision in that case ought not to be considered as controlling.

Justice William J. Brennan: On this point (Inaudible) on what record does the Supreme Court of -- is it in the Supreme Court of Illinois?

Mr. Richard L. Curry: It is in the Supreme Court of Illinois just --

Justice William J. Brennan: On what record will the appeal be concentrated?

Mr. Richard L. Curry: It is hoped quite frankly Your Honor, that the verdict in this case will require that Mr. Field use his considerable talent as was exhibited in his post trial motion of 14 pages and reconstruct a settled statement so that the matter can be brought to the attention of the Court as I hope an expectation that the rule of Griffin will not be expanded by this bench.

Justice William J. Brennan: As federal statement -- does that require agreements between the plaintiffs?

Mr. Richard L. Curry: Yes, sir.

It requires agreement similar to the agreement I submit that are necessary to have instructions to a jury.

Justice William J. Brennan: If there is disagreement?

Mr. Richard L. Curry: It is a binding instruction I submit.

Justice William J. Brennan: If there is disagreement, who settles the statement?

Mr. Richard L. Curry: The Judge would settle the disagreement between the parties in a settled statement under the Rules of Illinois.

Justice William J. Brennan: And that may still be done even if this (Voice Overlap)?

Mr. Richard L. Curry: That would have to be done in order to go forward with the Illinois Supreme Court of Appeal.

Justice William J. Brennan: How long was this trial?

Mr. Richard L. Curry: This trial was October 11, 1969.

Justice William J. Brennan: That probably does the -- will the trial Judge, if you follow that method and you and Mr. Field could not agree on the settled statement and the trial Judge had to instruct it, would he have available the transcript for that purpose?

Mr. Richard L. Curry: The transcript is not available in this case and there in the (Voice Overlap)

Justice William J. Brennan: Well my question Mr. Curry was would the trial Judge, that if it made available to the trial Judge so that he could resolve the dispute between you and Mr. Field, and (Inaudible) settled statement --

Mr. Richard L. Curry: I really do not know that Your Honor.

Chief Justice Warren E. Burger: Couldn't he order in and ask a reporter (Voice Overlap)

Mr. Richard L. Curry: I was going suggest, thank you Mr. Chief Justice, that avenue of reviewing the un-transcribed portion of the reporter’s notes is also an avenue which is available to the appellant in this case.

I direct your attention to the --

Chief Justice Warren E. Burger: That means -- some of that, yes we are both interested in that.

Could he, I may put a specific question, could Mr. Field or someone representing the petitioner here require the Court reporter to read his notes?

Mr. Richard L. Curry: I submit that it would be his obligation to point out to the Court that he had tried that and that avenue was not available, that he was in fact affectively foreclosed from the reasonable avenues to go forward with his matter and try to present an alternative to the Court.

Justice Thurgood Marshall: Mr. Curry, I am troubled with the fact that the Circuit Court has said frankly I do not care what you do, you are not untitled for it?

The rule says you cannot get it.

He didn't mention anything about any alternative.

He made a rule on -- his ruling was based on the rule of the Court and that is what we have before us, am I right?

Mr. Richard L. Curry: The rule of the Court spoken in terms of a felony at that time Mr. Justice Marshall.

Justice Thurgood Marshall: And was it not that where it was in Circuit Court?

When the ruling in this case was made the Judge was not interested in any other thing, am I my right or wrong?

Mr. Richard L. Curry: You are right at the lower level Your Honor.

He do not want to --

Justice Thurgood Marshall: Do you agree -- do you think he was right or do you think it was in error?

Mr. Richard L. Curry: He then went to the Supreme Court the --

Justice Thurgood Marshall: Do you think he was in error?

Mr. Richard L. Curry: I think he was correct with his ruling.

Justice Thurgood Marshall: Do you think he is correct now?

Mr. Richard L. Curry: I do Sir.

Justice Thurgood Marshall: Why, because of the rule?

Mr. Richard L. Curry: No, not because he ruled because there is in the Supreme Court of Illinois ruled three to agree, clear and unmistakable a language which finds that as a derivation of the case of Duncan versus Louisiana where alternates are specifically suggested as ways that a state can allow an indigent to proceed other than by a full verbatim transcript.

Unknown Speaker: (Inaudible)

Mr. Richard L. Curry: The Circuit Judge denied his motion for a free transcript, you are right, on the basis I submit though Your Honor that an extensive post trial motion running 14 pages here indicating the depth of perception that Mr. Field exhibited at that time.

Justice Thurgood Marshall: I am afraid I haven't made that clear.

I take it you are arguing about the Supreme Court, the difference between the ruling of the Circuit Court and the Supreme Court and as I understand it, there is not too much disagreement between you and Mr. Field on Supreme Court obviously because the page after page of arguing this point and that I understand that there is no disagreement.

I would just think that the original ruling I think was wrong.

Now, the Court, the Supreme Court’s ruling I take is is different matter that is my only point.

Mr. Richard L. Curry: I submit Your Honor that it's my contention that at the lower level it was one question that is he indigent and the Court found at the lower level that he was not qualified to apply for a free transcript under the rule because he wasn't a felony.

When this question was brought to the attention of the Illinois Supreme Court, the Illinois Supreme Court Your Honor found that for the purposes of fees and filing fees they would waive because the expenses of the administrator of the Court clerks, they are for the state to incur, but the State Supreme Court in my interpretation of what they have done has said we ought not in this case provide at the expense of the State of Illinois a transcript when the petitioner has not shown any attempt to avail himself of the other alternatives available.

Unknown Speaker: (Inaudible)

Mr. Richard L. Curry: We say that the petitioner in this case is not in the posture of Williams versus Oklahoma City and your decision in that case ought not to be controlling because Williams was locked out of his Supreme Court by reason of the unavailability of a verbatim transcript and had faced a 90-day jail sentence.

In that case the trial Court made specific findings that Williams argument had merits, that his appeal could not be properly prepared without a transcript, that neither Williams nor his Attorney could make up an inadequate record from memory, that the transcript was in fact in existence and available.

None of these condition exists in the present case, although a complete verbatim transcript has been denied, Mayer makes no attempt whatsoever to avail himself of the alternate methods available to present a record to the Illinois Supreme Court.

The Illinois Supreme Court Rule 323 (c) and (d) is in clear and unmistakable harmony with this Court’s observations in Draper versus Washington.

Justice William J. Brennan: May I ask this Mr. Curry.

Are you suggesting in connection with the pending appeal in the Supreme Court, it's still open to Mayer to demonstrate that the alternative methods are inadequate, is that still open in connection with that appeal in the Supreme Court?

Mr. Richard L. Curry: I would believe he would not be foreclosed to making that point.

Justice William J. Brennan: And now -- and if the succeeded in persuading the Supreme Court that the alternative method will not be adequate to present his appeal, would it fallow that the Supreme Court would then order a transcript?

Mr. Richard L. Curry: I believe that would be the --

Justice William J. Brennan: Notwithstanding the language of the rule that limits the transcript to felony cases?

Mr. Richard L. Curry: The language is now been reduced Your Honor to 90-days, though the change is not to remain to this case.

Justice William J. Brennan: But I am thinking of this case, Mr. Field with connection with a pending appeal, demonstrates that an alternative method would be inadequate, would the Supreme Court require that he'd be furnished the transcript?

Mr. Richard L. Curry: I believe they would sir, yes sir.

Justice Byron R. White: Why was that?

Mr. Richard L. Curry: Because I believe Justice White -

Justice Byron R. White: Because that the new rule wouldn't reach this case on the basis I take it that Illinois does not take transcript to require to any case (Inaudible)?

Mr. Richard L. Curry: I believe Illinois would be influenced greatly by the -- what transpired in William versus Oklahoma and be very cautious Your Honor to see the doors to the appellate court --

Justice Byron R. White: If it where found at --

Mr. Richard L. Curry: -- were not foreclosed.

Justice Byron R. White: If it were found that a verbatim transcript was necessary for each appeal, you think that your Supreme Court would think Williams requires it?

Mr. Richard L. Curry: I certainly do believe that.

Chief Justice Warren E. Burger: Are you suggesting that the Supreme Court of Illinois would have among other powers, the power to order a transcript under each supervisory jurisdiction overall lesser courts in the State?

The rule is not an absolute and to the extent that the Supreme Court then would be in an impossible position that it would recognize that a meaningful appeal could not be brought, but its hands would then be effectively tied to allow such an appeal to come forward.

I do not believe that's a tenable situation.

I don't think Illinois Supreme Court would so interpret their own rule.

Petitioner here, I submit, rejects out of hand what Draper suggests and it is not a hand to help the Court understand why the alternative courses are found wanting?

Instead he asks this Court to expand Griffin beyond the clear and meaningful limit to that rule and its successors beyond the bounds of logic and beyond what I submit to be the capabilities of the appellate processes as in Illinois and perhaps throughout the nation.

The troubled journey which Griffin and its successors seek to alleviate for the indigent criminal defendant as he struggles to maintain his liberty cannot abide, I submit, his purpose for meandering off the path.

The record must clearly disclose the inadequacies or unavailability of multiple remedies.

Appellate makes no attempt in this regard and I submit that counsel errs in his brief at page 37 when he suggests that California requires no such showing.

The California Rule as to a free transcript in misdemeanor cases is set forth in the 1970 case of Joe Z. versus Superior Court reported at 3 California 3rd, page 54.

When the Court in that case held that before an indigent misdemeanor is entitled to a free transcript on appeal, he must first attempt to reach an agreement upon a settled statement.

The transcript would be provided only of the parties cannot agree or for settle statement would be inadequate.

The misdemeanor then Court quotes, “Must show in a reasonably particularized presentation the reason why he cannot inform the reviewing court by a settled statement of the claimed inadequacies and error.”

I submit to you it is impossible to determine whether the parties cannot agree or whether a settled statement would be inadequate unless there has first been a real attempt at an agreement.

It is the burden of indigency that the cases seek to relieve.

Mayer in this case would champion that cause into a calculated disregard for alternate methods of presenting an appeal which this Court has previously approved of them both Griffin and Draper and which the Illinois Supreme Court has by rule subsequently adopted.

If a full stenographer's transcript must be produced as matter of right or as a matter of simple preference unrelated to cost, unrelated to convenience or necessity or even unrelated to rule of Court then the alternatives to the extravagance suggested in Draper must be overruled.

Justice Potter Stewart: I did not understand that the claim in these cases unrelated to a particular arise need in this case.

As I understood the petitioner, his claim is that because of the two claimed endeavors in this case, sufficiently of the evidence, insufficiency of the evidence in prosecutorial misconduct.

This happens to be one of those rare cases if you will where a settled statement of the facts would be inadequate.

Mr. Richard L. Curry: These two points were brought to the Illinois Supreme Court --

Justice Potter Stewart: Yes.

Mr. Richard L. Curry: -- on motion not on brief Your Honor and the extensive fashion in which they were discussed in brief in this Court was not, I submit, brought to the attention to the Court to that extent.

The alleged prosecutorial error and prejudicial treatment in the manner that charges to the Jury were given in the broadest terms, in the same terms at least raise them in this Court.

Justice Potter Stewart: I did not realize there were claims about the instructions to the Jury. I thought the questions were sufficiency of the evidence in prosecutorial misconduct.

Mr. Richard L. Curry: Right and they are sufficiency of the evidence.

Justice Potter Stewart: And that I further understood appellate's basic claim to be that while in perhaps ninety-nine-and-half percent of the cases of this type an adequate and fair view could be had on a agreed statement of facts or a settled statement.

There do exist some rare cases where that is insufficient and therefore the rule of the Illinois Supreme Court which just is a blanket rule thing that in no case can there be a transcript that that violates the Fourteenth Amendment.

It's a little bit analogous to a case we have that term Groppi against Wisconsin, involving a rule of Wisconsin law that it said, that in no misdemeanor case, in no misdemeanor case could there ever be a change of venue and the claim was made that in 999 out of a 1000 or perhaps more misdemeanor cases there would not need to be a change of venue in order to a Court for fair trial.

But there could the rare case where only a change of venue could satisfy the Fourteenth Amendment and provide a fair trial and that as I understood, it was the appellant, the petitioner’s claim here.

He is attacking the blanket rule of the Supreme Court of Illinois.

Mr. Richard L. Curry: But he has never tried --

Justice Potter Stewart: Do I understand this to be his argument?

Mr. Richard L. Curry: I believe that he overstated --

Justice Potter Stewart: Do you understand the state than I do?

Mr. Richard L. Curry: He is overstating his argument.

Justice Potter Stewart: I was -- maybe I am overstating the argument on this case's argument, that is what I understood?

Mr. Richard L. Curry: No, Sir, Justice Stewart.

The point -- the point that I think is important and I think the meaningful reasons for the alternatives in the US -- in the Illinois Supreme Court rule is that it is incumbent upon those to whom a transcript is not available either because of their Indigency or because of their unwillingness to pay for it from their own funds, it is incumbent upon them before they ask the state to show the Illinois Supreme Court why they cannot bring the record to the Court in one of these alternate fashions.

He did not do this in this case and --

Justice Potter Stewart: How about his affidavit a part of which appears on the petitioners brief on page 12 that was brought before the Supreme Court of Illinois, was it not?

Mr. Richard L. Curry: I am lost, I am in the abstract, the US abstract.

Justice Potter Stewart: No.

I am on --

Mr. Richard L. Curry: Sorry.

Justice Potter Stewart: -- the brief for the appellant on page 12, petitioner's appeal, the appellant on page 12.

Is it not that part of an affidavit that was submitted to the Supreme Court of Illinois?

Mr. Richard L. Curry: I believe it was, yes sir.

Justice Potter Stewart: So far as that?

Mr. Richard L. Curry: But it is conclusionary in --

Justice Potter Stewart: Well, were they having --

Mr. Richard L. Curry: I would have him point out, would have inquired of the prosecutor as the prosecutor’s willingness to be engaged in a settlement, a possible settled statement before the Court.

Justice Potter Stewart: I do not suppose most prosecutors would agree that they engaged in misconduct.

Mr. Richard L. Curry: I do not suppose they would but I believe Your Honor that we should have an hearing of that issue for the benefit of the rule so that the Supreme Court would know that its rule was not flagrantly been disregarded, but there was an attempt to adhere to the rule.

If he was able come forward and say that the prosecutor who handle this case was unavailable or unwilling participate in a negotiated settlement I would say that would be meaningful information for Illinois Supreme Court to hear.

Justice Potter Stewart: But --

Mr. Richard L. Curry: If he said that he had gone to the trial judge and asked the trial Judge what his minutes book showed as to notes of what his recollection was I would say that those would be meaningful comments that the Illinois Supreme Court would utilize in determining then the appropriateness or the true meaningfulness of his application for a free transcript, that he really would not be before them in any meaningful fashion unless he was able to have one or the other.

I do not believe that the persecutor would be able to foreclose the appeal by denying.

If the prosecutor denied it then I think the Illinois Supreme Court would remedy that by granting him the free transcript.

Justice Potter Stewart: That you would -- I would for a moment as I understand the colloquy you indicated that this rule does not mean what it says?

Mr. Richard L. Curry: I mean it is not as absolute as it's read.

I mean that in the application of the rule the Court would clearly require an exhaustion first of alternates and then recognize that the mere filing would not give the person present before them.

Justice Potter Stewart: In what?

Mr. Richard L. Curry: It would be important before --

Justice Potter Stewart: What authority you got that say that the rule of the Supreme Court of Illinois did not mean what it seems to say?

Mr. Richard L. Curry: The authority would be on the basis of that Court’s close attention to the language of this Court’s decision in Griffin and --

Justice Potter Stewart: Yes and do you know of any case where --?

Mr. Richard L. Curry: No, sir there is no case that I know of.

Justice Potter Stewart: Or if you got any direction or authority from the Supreme Court of Illinois to make this representation?

What I know clearly though is that at the lower level, in the trial level there are number of instances where despite the fact that there are alternatives available and despite the fact the rule calls for no transcripts over 90 days that the trial level in many instances in my experience as corporation counsel does grant a transcript to the indigent.

Chief Justice Warren E. Burger: In other words, this is a matter of discretion on the part of --

Mr. Richard L. Curry: It is utilized as a matter of discretion and not brought into challenge by in any case that I am aware of in Illinois.

Chief Justice Warren E. Burger: I suppose your argument would mean that if the trial Court has -- in fact level has that discussion, Supreme Court of Illinois it has it within its supervisory power?

Mr. Richard L. Curry: I really believe that the weight and the import of the Williams case would be so profound on the Illinois Supreme Court to justify belief that they would effectively render this petitioner's appeal meaningless by denying him all avenues if he were to effectively show them that the two alternatives that they suggest are meaningless than I do believe that they would remedy the incongruity that exists there and require a free transcript be provided.

Justice Potter Stewart: And then, in other words, you are saying that rule as written is unconstitutional?

Mr. Richard L. Curry: I do not believe I am saying that at all sir. I am obviously reading into it more than the usual language is there, but I do not believe the rule is unconstitutional.

Justice Potter Stewart: Well, I thought you said that under the Williams against Oklahoma if the rule as written is unconstitutional that if there is a showing that anything short of a written transcript of the evidence will not give a meaningful appeal than there has to be a written transcript and this rule as written doesn't provide for that.

Mr. Richard L. Curry: There has to be such showing.

Justice Potter Stewart: Yes.

Mr. Richard L. Curry: I submit that there is nothing like that in the state.

Justice Potter Stewart: The rule does not make any exception for a written transcript or there is any such showing, does it?

Mr. Richard L. Curry: It does not sir.

Justice Potter Stewart: So the rule is unconstitutional as I understand.

Mr. Richard L. Curry: The rules follows very closely the language in Duncan where alternatives were suggested by this Court as the means that the State may utilize to avoid the impact of extravagance, frivolous appeal to what have you?

I submit that in following that logic the Court clearly wrestled with the subject and has a rule which is not keeping with Griffin and is not keeping with Duncan and when we come to a fact situation which we really have not come to in this case or any case that I know of in Illinois where the two other alternatives are shown to have been attempted and to be wanting in brining a meaningful record to the Court.

We haven't come to the case where then the Illinois Supreme Court would deny.

I do believe that if a --

Justice Potter Stewart: What sort of case would you hypotheticate that would be such a case?

Mr. Richard L. Curry: Pardon, I would hypotheticate that there would never be such a case in Illinois.

Justice Potter Stewart: You do not think there is any such case?

Mr. Richard L. Curry: I do not believe there would be, sir.

Justice Potter Stewart: There could be?

Mr. Richard L. Curry: There could be surely, but I do not believe there would be for simple reason that the purpose of the rule in my opinion clearly and unmistakably indicates the ruling is on the part of the Illinois Supreme Court to have the litigant available to come before him and present a meaningful record of what transpired.

It does -- it is presents alternatives and it seems to me that when have early say I do not want alternative B and I do not I want alternative C, I must have alternative A that is not keeping with what the Illinois Supreme Court rule has in mind.

If you took away the first two problems where you did meet that issue then I do believe that in Illinois a free transcript would be forthcoming.

Justice Thurgood Marshall: I just have a quick problem of how you get an agreed statement on “prosecutorial misconduct in many instances throughout the trial”?

Mr. Richard L. Curry: Prosecutor.

Justice Thurgood Marshall: How you can do that without a transcript, I have great difficulty, thinking?

Mr. Richard L. Curry: One of the errors alleged is that the prosecutor limped in the courtroom.

The prosecutor was although injured in that same affair, he did limp in the courtroom as you would be uncertain, perfectly willing to agree that he limped in the courtroom that day, if that is prosecutorial error.

I do not believe it is but I know --

Justice Thurgood Marshall: I don't know what other.

You said throughout the trial (Voice Overlap)

Mr. Richard L. Curry: But neither --

Justice Thurgood Marshall: Now, if he put these statements down and submits them and they are not agreed upon, is he bound by those statements?

Mr. Richard L. Curry: Is he bound by them, I believe that it would be very similar, the negotiation that would go on during a agreed statement or a settled statement would be very similar to the kind of negotiations that goes on when lawyers and the Judges get together over instructions to the Jury.

Chief Justice Warren E. Burger: What happens to Judge -- haven't you already told us counsel that on all unresolved matters of a settled statement, the Judge resolves?

Mr. Richard L. Curry: The Judge will resolve.

Chief Justice Warren E. Burger: So that the parties put down on paper what is agreed on and the Judge supplies the vacant spots, where they are not going to --

Mr. Richard L. Curry: That's my understanding.

He would have available to him, the note, the minutes note that he made as you said there.

He would also have I submit available to him the participation of the un-transcribed notes from the Court reporter if he sought them and thought they were necessary.

Chief Justice Warren E. Burger: Was any request ever made by the then defendant for having a reporter read any parts of the transcript?

Mr. Richard L. Curry: I know of none.

Chief Justice Warren E. Burger: And is any claim within in the record on behalf of the petitioner if you know?

Mr. Richard L. Curry: There is none.

There is none.

There is no showing throughout the record that any attempt has been made to secure an agreed statement.

I take issue with Mr. Field's statement that despite two days of trial he would find it impossible to prepare such a statement.

I would brought your attention to the extensive post trial notice which appears in your abstract at page 11 through 22, 14 pages I might add of in depth analysis of what did transpire at that hearing.

I submit that this almost in itself would be tantamount to a record made under either one of these proposals by the Illinois Supreme Court.

The cases since Griffin give the support of the kind of balance that judicial propriety found in Duncan.

That is the consequences to the defendant from the conviction of a petty offense are insufficient to what were the benefits to efficient law enforcement as simplified judicial administration.

In applying Fourteenth Amendment, Rinaldi versus Yeager says, these avenues of appeal must be kept free of unreasoned distinctions.

I believe that there is reason distinction in the Illinois Supreme Court rule.

The distinction being between petty and serious and I believe that is very important distinction that ought to be respected in future decision by the Court.

Justice Potter Stewart: And under the distinction in Illinois between petty and serious is offenses for which you can go to prison and those for which you cannot?

Mr. Richard L. Curry: Six months is the distinction made by the Illinois Supreme Court rule, yes sir.

Justice Potter Stewart: Up to six months?

Mr. Richard L. Curry: Yes sir.

Justice Potter Stewart: Same as the Federal rule?

Mr. Richard L. Curry: Right same as the federal rule.

The classification would fail we're told in Shapiro versus Thompson unless shown to be necessary to promote a compelling governmental interest.

I submit to you that a compelling elemental interest is very real here in the viability of the Court systems at the lower level, but most apparently at the appellate level, if appeals on full transcripts to indigence are the outgrowth of the rule of this case and finally in Boddie versus Connecticut the Court mentioning the absence of countervailing state interest of overriding significance and classification must fail.

I say to you that a classification such as we have here between serious and petty is a countervailing state interest of overriding significance.

I would respectfully ask this Court to reject what's urged by the appellant and not expand the rule in Griffin into the petty offense area.

Thank you very much.

Justice William J. Brennan: May I ask one question before you sit down?

Mr. Richard L. Curry: Certainly.

Justice William J. Brennan: I am looking at your rule 323 (c) that is on the alternative, at page 4 (a) and I think it is the petitioner's brief.

I know (Inaudible) the capture that rule is procedure if no verbatim transcript is available?

Mr. Richard L. Curry: That right.

Justice William J. Brennan: It is on the page that I would suppose mean that it been no transcript taken or something like that?

Mr. Richard L. Curry: Means if none is available by indigency, means if none is available by --

Justice William J. Brennan: Well, that seems -- it seems broader -- the rule the rule itself be not available if no verbatim transcript to the evidence of proceedings is obtainable.

Now, are they synonymous available and obtainable, but on face of it your other rule says it is not obtainable unless a felony case?

Mr. Richard L. Curry: Not obtainable in this case because he cannot pay for it, I submit Justice.

Justice William J. Brennan: Is that what (Inaudible) there is construction to this?